Frozen Conflict Becomes Hot War: Russia Invades Georgia

by Chris Borgen

The frozen conflict over the Georgian separatist region South Ossetia has become a shooting war. On the first day of the Olympics, no less. According to CNN:

“All day today, they’ve been bombing Georgia from numerous warplanes and specifically targeting (the) civilian population, and we have scores of wounded and dead among (the) civilian population all around the country,” President Mikhail Saakashvili told CNN in an exclusive interview.

“This is the worst nightmare one can encounter,” he said.

Hundreds of people, possibly thousands, are fleeing South Ossetia to the Russian region of North Ossetia-Alania, the United Nations reported Friday, citing Russian officials. About 400 more are believed to have fled for other parts of Georgia, the United Nations said.

Asked whether Georgia and Russia were now at war, he said, “My country is in self-defense against Russian aggression. Russian troops invaded Georgia.”

About 150 Russian armored vehicles have entered South Ossetia, Saakashvili said, and Georgian forces had shot down two Russian aircraft.

The separatist conflicts in the Georgian regions of South Ossetia and Abkhazia have often been termed “frozen conflicts,” along with other long-standing separatist crises in Moldova and Azerbaijan (and some would add Kosovo). There are many reasons why these conflict have been seemingly intractable. Factors ranging from Russian assistance to the separatists (especially in the Georgian and Moldovan cases), a sense of ethnic difference (justified or not), historical grievances, and factions that seek to derail negotiated solutions are problems in all of these conflicts.

Georgia , however has been in the unenviable position of having two distinct separatist regions: one in Abkhazia and the other in South Ossetia. Russia has taken an increasingly interventionist stance on the situation in Georgia, especially since Kosovo’s declaration of independence. I have heard many experts express concern that, of the frozen conflicts, one (or both) of the Georgian conflicts were at greatest risk of becoming real wars. In part, this is because Russia is most easily able to exert direct influence as both regions border Russia and Russia can easily roll in the tanks, as it has done today.

This crisis points out an interesting divergeance between how Russia talks about international law and how the EU and US do, as I’ve written about here. In short, when it comes to the frozen conflicts the EU and the U.S. focus on the international norms concerning sovereignty, territorial integrity, and that self-determination does not lead to a right of secession. Russia, however, tends to focus on norms concerning minority rights and the ability of states to defend the interests of “co-nationals.” Seemingly in an attempt to fortify the “co-nationals” argument, Russia has been recently providing passports to just about anyone in Abkhazia or South Ossetia who asked for one. Russia then argues that these people–who had until then lived their lives in Georgia–are best understood as Russian citizens. This “passportization” policy has been widely criticized. This argument based on minority rights and the protection of co-nationals seems to be at the heart of Russia’s explanations of its invasion of Georgia. According to CNN:

Russia’s Foreign Minister Sergei Lavrov meanwhile said Moscow had received reports that villages in South Ossetia were being ethnically cleansed, according to Reuters.com.

“We are receiving reports that a police of ethnic cleansing was being conducted in villages in South Ossetia, the number of refugees is climbing, the panic is growing, people are trying to save their lives,” he was reported saying

Russian President Dmitry Medvedev, quoted by the Russian news agency Interfax, said Russians had died because of Georgia’s operations.

Russia “will not allow the deaths of our compatriots to go unpunished” and “those guilty will receive due punishment,” he said. “My duty as Russian president is to safeguard the lives and dignity of Russian citizens, wherever they are. This is what is behind the logic of the steps we are undertaking now.”

Note that with the ethnic cleansing argument, Russia seeks to essentially say “NATO, this is no different than what you did in Kosovo.” Medevdyev also uses the co-nationals argument.

Russia’s invasion of Georgia brings to a head many issues that have been floating around, ranging from arguments over NATO’s invasion of Kosovo to the proper understanding of self-determination to the role of Russia in the ongoing frozen conflicts.

I will have more on the situation in Georgia and the related international legal issues, later. For now, Postmodern Conservative is keeping a running summary of the news related to the invasion.

14 Responses

“If Georgia starts fighting against South Ossetia, Abkhazia will open a ‘second front,'” Abkhazia’s deputy defense minister, Garri Kupalba, told the paper. “Abkhazia will without a doubt take part in military actions.”

8.08.2008
at 3:20 pm EST Zach

Response…

Well part of the problem is that Ossetia has no historical ties to the Georgians. The Ossetians have always been traditional allies of the Russians. Ossetia was always autonomous under Russian rule, but Stalin still divided it between Russia and Georgia without the Ossetians consent. Still it was autonomous.

When Gerogia became independent the Ossetians were not happy and didn’t want to be part of Georgia. They especially got angry because the Georgians want to impose the Georgian language on them. They first declared themselves autonomous (which the Georgians took away) and then independent and war developed. There’s been a ceasefire for 14 years now, when the Georgians didn’t win the war.

The point is that perhaps when Georgia was given independenc, surely the autonomous Ossetians should have had the right to vote to. Especially sine unlike in Kosovo the Georgians have no hsitorical ties to that area, In fact I think Georgia was suppose to let those people get a refrendum at the time of independance but didn’t.

8.08.2008
at 6:16 pm EST becca

I don’t see this ending well for anyone involved, especially if Abkhazia blows up next.

How could you say that ”EU and the U.S. focus on the international norms concerning sovereignty, territorial integrity, and that self-determination does not lead to a right of secession”, when both EU and USA are promoting secession of Kosovo Albanians, and recognizing Kosovo as independent state?
Their recognition of Kosovo as an independent state is a violation of Serbia’s sovereignty and territorial integrity, and it gives a whole new meaning to self-determination, i.e. it made secession a logical continuation of proclaimed self-determination.
Now we see what happens… Kosovo is not an unique case, I would say, and that ”law-obiding” approach is leading to some pretty unlawful acts nowadays.

8.09.2008
at 2:14 pm EST Dragutin Nenezic

Dragutin:

I was referring to the arguments that I expected U.S. and the European states to make in this case, not regarding Kosovo. Actually, Russia is playing a similar game, speaking very forcefully about territorial integrity and sovereignty in relation to Serbia, and all but ignoring these issues whyen it comes to Georgia and Moldova.

I agree that Kosovo is the “elephant in the room…” I discuss Kosovo at greater length in this piece .

8.09.2008
at 9:03 pm EST Chris Borgen

Dear Chris,

I wonder whether one could put the argument in even stronger terms. It seems to me that so far the issue of Kosovo has been completely irrelevant, at least in legal terms. To follow the Court’s suggestion in Nicaragua, we have to look at the particular arguments that States have put forward to justify the use of force, and not try to imagine the a priori best argument, that could apply to the situation. So far, Russia has not said that ‘we recognise South Ossetia as a State according to the Kosovo criteria and move in to protect it’. It has rather put forward a mixture of other arguments, initially talking about protection of nationals (with some ambiguity whether it means the Russian-passport wielding civilians or the Russian peacekeepers), something seemingly quite close to humanitarian intervention (hence the talk about ethnic cleansing and genocide) and now appears to have decided to rely principally on the peacekeeping aspect:

“Russia’s aim is to keep peace. This is not just Russia’s aim, this is Russia’s obligation. Russian peacekeepers have been brought there under the agreement between the parties after the war which started in the early nineties. The late President Gamsakhurdia who was the leader of Georgia at that time declared his policy “Georgia for Georgians”. He cancelled autonomies of Southern Ossetia, Adjaria and of Abkhazia. He brought his troops into these areas and then the resistance took place. And Georgian army was wiped out of those regions. It was then that after quite nervous and intense negotiations a peacekeeping mechanism was established comprising Georgians, Ossetians and Russians. The peacekeeping force was established and this peacekeeping force has a mandate. The mandate is to make sure that there is no violation of quiet in the zone of conflict and the peacekeepers are required by this document to prevent any violations and to put out any violations. Since Georgian forces for the second time are engaged in aggressive actions in full violation of the obligations under those international agreements and international humanitarian law by attacking civilians, residential quarters, humanitarian convoys, attacking the convoys trying to remove the wounded from the area of the fighting and even, by some reports, finishing off the wounded. So this is absolutely unacceptable and the responsibility of Russia as a peacekeeper could be only sustained by responding to this aggression.’ (Interview by Foreign Minister Lavrov, http://www.mid.ru/brp_4.nsf/0/7DA7151CCFE690B6C32574A00061BF06)

It is not entirely clear how we can put this within the four corners of the UN Charter. The point about another treaty is a priori doubtful — whatever its content — because it either does not add anything to the UN Charter and is thus superflous (except perhaps if there is an express link to the collective self-defense) or goes against it / further than it, and that would seem to be excluded by Article 103, not to mention the jus cogens character of the prohibition on the use of force. The 1992 Soci agreement between Russia and Georgia on cessation of hostilities is not very helpful, simply stating in the first sentence of Article 3(3) says that Joint Peacekeeping Forces are created at the Joint Control Commission. Article 3(5) says that in case of breach, the JCC carries out an investigation (http://smr.gov.ge/uploads/file/Dagomis%20Accord.pdf – in Russian). So nothing that would help Russia here — even if Georgia has breached the agreement, it does not trigger the right of use of force, rather leaving it with all the classic law of treaties / law of responsibility measures. Annex 1 to the JCC Decree of 6 December seems more to the point, saying in Article 2(2) that ‘[t]he decision on the use of military contingents and military observers in case the conditions of the ceasefire are violated by one of the sides will be taken by the commander of JPKF with the aim of restoring peace; and the JCC will be notified’ (and the second sentence of Article 2(1) says that this commander is Russian) (http://smr.gov.ge/uploads/file/jpkf/1994-12-06%20Resolution_JPKF_Eng.pdf). The idea of ‘restoring peace’ seems to be something along the lines of what Russia has been saying, but I don’t think that this would help much on its own. I am not entirely sure where one would put a decree by JCC in terms of treaty interpretation (since JCC has a Russian, S-Ossetian and Georgian members, perchance it is subsequent practice as per Article 31(3)(b)?). In any event, the text and context suggests that what is meant are the Joint Peacekeeping forces themselves, and not the full armed forces of the particular countries. So if Georgia has breaches the Soci agreement, the peacekeeping forces could be justified in responding, but it would not per se justify the involvement of Russian forces in excess of the rather limited peacekeeping forces. (Putin has also referred to some 1999 agreement, but I have been unable to track that down.)

It appears that we should be back on the general rules. UN Charter does not provide the right to use force for ‘peace making’. Lacking a SC authorisation, the question is whether Russia’s use of force can be justified by Article 51 or some ingenious customary law right. First of all, is this collective self-defence? Georgian attack on S-Ossetia per se is not an armed attack that Russia could respond to with collective self-defence, since S-Ossetia is not a State for the purpose of UN Charter and thus does not enjoy the right to be protected from military force by itself or by States that are willing to help it. Rather, on the face of it, Russia’s use of force would be intervention of a third State in a civil war — a thing apparently unlawful. The point about Kosovo is irrelevant, since neither of the involved parties has relied on it.

Secondly, can Georgian attack on the S-Ossetian nationals in posession of Russian passports be construed as an attack on Russia? The first question is whether such a right exists in principle — contested outside (and perhaps even inside) the narrow Entebe-style rescue operations. The second question is whether it applies in the case in question. This is not a ‘rescue-style’ operation; rather the appropriate analogy is US in Panama and Grenada, where justifications were overlapping and did not meet with particular favour by the international community. The third point more particular here is whether S-Osetians Russian nationality is valid for the purpose of international law, or whether it would be something along the lines of hypothetical Turkish nationality for TRNC people, reflecting not a genuine link but precisely in advance justifying use of force in a roundabout way defence of an entity that could not be defended directly because of its unlawful status. Finally, the question is whether the existence of a non-international armed conflict would mean that nationals are threatened — we should assume that no State would breach its IHL obligations, so it would be hard to make a jus ad bellum argument on the a priori assumption that jus in bello rules will be breaches. In general, the answer would probably be no.

Thirdly, can attack on the Russian peacekeepers be construed to be an armed attack on Russia? Even though the text of Article 2(4) talks about territory of the State, here one could be more sympathetic towards the Russian argument, even though much would depend on the factual situation in which they came to be in the military conflict, and at least in principle they were there not as representatives of Russia but as members of the JPKF. So controversial, but less implausible than other arguments. In any event, here is where the criteria of necessity and proportionality would kick in. To defend peacekeepers it is probably not necessary to bomb cities and ports all around Georgia; it should be a narrow surgical strike in-and-out operation, because arguably treaties on cease-fire are precisely those types of treaties that are terminated by use of force, thus the initial authority to be present in Georgian territory would lapse.

Fourthly, what is particularly ironical is the quick shift of emphasis from the State that does not want others to use force to one that uses force itself. Regarding Kosovo, Russia was not persuaded that use of force was lawful after a number of SC Ch Vii resolutions on the deteriorating conditions and many independent reports. Regarding Osetia, it took Russia one day to identify ethnic cleansing, two days to identify genocide and to invoke it as part of its vernacular justifying use of force.

The bottom line is that Russia does not have a strong claim to use force, at least on the level it is doing. Georgia-S-Osetia is Russia-Chechnya in the Second Chechen War — an enforcement operation by the central government against de facto existing but de jure non-existing State, thus Article 2(4) does not come in at all. There is no SC authorisation, any use of force in self-defence would have to fight an uphill battle against the territorially-oriented text of Article 2(4) and the generally negative State practice, and in any event would run into problems with necessity and proportionality. The other treaties are superfluous or displaced by Article 103 UN Ch / void by jus cogens: States cannot modify the rules on the use of force inter se or regarding other entities (indeed, from an academic perspective, Russia’s argument is the long-missing footnote to the proposition that State A cannot agree with State B that State B can use force against it in breach of Un Ch). PS. The links are constantly crashing but it is possible to get through.

Regards,

8.10.2008
at 7:46 am EST Passerby

I have read your text about Kosovo when it was posted, actually included link to it on the website about legal aspects of Kosovo problem that I run with my colleagues.
The problem is definitely two-sided approach, both in USA and Russia. Hearing Bush speak about territorial integrity could only make me laugh. And hearing Russia use the same arguments as NATO back in 1999. doesn’t feel good.
Kosovo has been, im my opinion, the trigger. And I am afraid that worst is yet to come (Xinjiang, anyone?). The point I was trying to make is very simple – arguments are used not as they should be, but as USA or Russia want. There is definitely no respect for territorial integrity on both sides, and their attitudes towards territorial integrity seem to converge only when their interests clash.

read, and then talk about ”the point about Kosovo” being ”irrelevant, since neither of the involved parties has relied on it”.
Southern Ossetian leaders are relying on it since Kosovo proclaimed independence. Russian president is talking about it since ever since he was elected (not to mention the former president, now prime minister), as well as minister of foreign affairs doing it on weekly basis for almost two years. And I hope that you have seen some of the Halilzad-Churkin exchange yesterday… And that is purely legal talk.

8.11.2008
at 5:19 am EST Dragutin Nenezic

Dear Dragutin,

I do apologise for my somewhat careless language; I thought that the context made reasonably clear what I meant. For ‘irrelevant, since neither of the involved parties has relied on it’ read ‘irrelevant, since neither of the involved parties has relied on it to justify the use of force’.

The views of South Ossetia are irrelevant to the extent that they are not accepted by the international community, and they have not been. Georgian views are clear. Despite Russia’s critical attitude towards the idea of Kosova’s independence more generally, it has not made the argument that ‘we recognise Ossetia to be a State (in accordance with the criteria established by Kosovo case that we now recognise as a right and accurate statement of international law) and then move in to exercise the right of collective self-defense’. The maximum that Russia has said is that in light of the conflict it may be worth reconsidering in the future the extent of Georgia’s territorial integrity: a very different legal point from saying that the use of force was justified because South Ossetia was a State within the meaning of international law. None of the multitude of Russian legal arguments — peace-making (whatever that may mean), protection of nationals and humanitarian intervention — is premised on existence of South Ossetia as a State. In fact, the argument of ‘aggression against one’s own people’ suggests that Russia is clearly situating itself within the classic legal framework.

The citations that you provide are either general statements before the conflict providing us no help with explaining its legal rationale, or (as in the SC debate) talk about the use of force in Kosovo or the underlying reasons for conflict, and not justification for its lawfulness (as I suggested above, even putting aside the volte face of Russian attitude towards humanitarian intervention and arguendo accepting that Kosovo was good law, none of the possible criteria for its exercise — clarity of facts, exhaustion of all peaceful remedies, Ch VII Res taking note of the catastrophe, threatened or exercised veto in the SC precluding the activation of collective security model — have been complied, when the force was used almost immediately and the facts are unclear to the extent that Russia contested UN SG office’s views as biased). I still stand by the view expressed in the previous post: despite the factual similarities, the recognition of Kosovo is irrelevant because none of the relevant actors invoked it, and the use of force in Kosovo can become marginally relevant, only if Russia attempts to seriously base its justification on humanitarian intervention (and after the confusion of the first days it appears to have decided to rely on peace-enforcement on the basis of Soci Treaty).

8.12.2008
at 7:36 am EST Passerby

Passerby,
I think we should make a distinction (or even better, I should have done that in my previous comment) between two types of claims based on Kosovo experience: one made by Southern Ossetia (however irrelevant that might be, and not getting the recognition even from Russia), and another made by Russia.
The Southern Ossetian claim is one demanding independence, based on the Kosovo declaring its independence in February. That one is also the one Russian diplomats were warning about before the violence errupted in Southern Ossetia.That was the claim I was reffering to in some of the links, and I obviously missed your point about use of force, so they are very much irrelevant for that matter. Time will show will Russia recognize Southern Ossetia or not, and what will be the outcome. Then we could argue about this analogy again, and the alleged uniqueness of Kosovo case.
Now, the Russian claim about the use of force in 1999. comes into play. Not as a justification for the present actions, as you notice, but as a question, still unanswered, about the scope of actions in 1999, and probably a moral lecture as well – which is very cautious move by the Russian representative. That is the claim I was refering to in SC link. In the meantime, several high Russian officials repeated that claim, such as Mr. Rogozin.
You are right when you mention the Soci Treaty, because it is the only solid ground for the beginning of the Russian intervention for now, and it keeps Russian position about Kosovo and Southern Ossetia very cautious. However, we will see how things evolve. I think that we might expect the use of Kosovo analogy to go beyond the scope of NATO operations.
And I don’t remember that Kosovo was deemed a state in 1999, so Russian intervention has nothing to do with their stance towards Southern Ossetia’s statehood. That’s also what you say when you write about ”the argument of ‘aggression against one’s own people’ suggesting ”that Russia is clearly situating itself within the classic legal framework”. But Russian recognition of Southern Ossetia might be a result of the intervention. It just might…

8.12.2008
at 9:35 am EST Dragutin Nenezic

Dear Dragutin,

It is good that we agree.

The only brief point is that I don’t think that the Soci agreement provides a solid legal ground for use of force, even though it it right Russia is now basing itself on it. Article 103 of the Ch and jus cogens preclude States from creating broader rights to use force than those provided for in the Charter, and it sounds slightly absurd to suggest that Georgia itself has agreed that Russia could use force against it more broadly than permitted by the Ch. In any event, according to Soci Agreement and the decisions of the Joint Control Commission that I provided links to supra, in case of breach of cease-fire the JCC investigates the situation and the Joint Peace Keeping Forces respond to the breach. It does not grant any rights to States the nationals of whom constitute the JPKF. Consequently, if we arguendo accept the breach by Georgia, Russia could respond by countermeasures, but not in breach of the rules on the use of force and jus cogens (cf. Article 50 of ILC Articles).

8.12.2008
at 10:06 am EST Passerby

Passerby,
I think that the frequent use of Kosovo analogy regarding the use of force by Russians is exactly the way they are trying to leverage against possible accusations about the breach of Charter and ius cogens. And they will probably use the argument that their peacekeepers were under attack by fellow Georgian peacekeepers, so they needed to act fast and protect them, without the decision of the JCC, probably invoking article 3, para. 5 of the Agreement, and interpreting it widely enough. Although my Russian is not that good, so I might be reading it in a wrong way.

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